The United States Court of Appeals for the D.C. Circuit ruled that the National Institutes of Health (NIH) could continue to fund human embryonic stem cell research (hESC) pending the resolution of a lawsuit in the U.S. District Court for the District of Columbia. The 2-1 decision handed down on April 29, 2011 lifted a preliminary injunction issued by District Court Judge Royce C. Lamberth that had blocked NIH from funding hESC research until Judge Lamberth ruled on whether such support violates federal law.

Plaintiffs James L. Sherley and Theresa Deisher argued that federal support for hESC research violates the Dickey-Wicker amendment, a provision attached annually to the Labor, Health and Human Services appropriations bill, that prohibits research resulting in the destruction of human embryos. They also made the case that NIH’s decision to award hESC grants puts them at a competitive disadvantage in acquiring funding for their work on adult stem cells. The task before the Court of Appeals was not to rule on the merits of the case, but rather to decide if there were grounds to halt NIH funding for hESC research until the District Court issued its final decision.

In overturning the preliminary injunction, the court majority concluded that the plaintiffs were unlikely to succeed on the merits of their case. They stated that Dickey-Wicker is ambiguous and deemed it reasonable for NIH “to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used.” The majority also stated that the balance of harms that would result from prohibiting hESC research is in NIH’s favor. A preliminary injunction would impose “certain and substantial” hardships on hESC researchers insofar as it would preclude NIH from funding new hESC projects, bar further disbursements to hESC scientists who have research in progress, result in a loss of investment in project planning and equipment expenditures, and lead to job losses for research staff. In contrast, they noted that it is “uncertain whether invalidating the [NIH stem cell] Guidelines would result in plaintiffs getting any more grant money.” The District Court has yet to rule on the merits of the case. Whichever way the court decides, additional appeals are expected.